Jones v Dunkel

[2017] FamCA 310

FAMILY LAW - CHILDREN - Where final orders were previously made in 2009 for the parties to have equal shared parental responsibility and for the children to spend time with the father - Where the father seeks orders for parental responsibility in relation to education and for the mother to have parental responsibility for medical and religious matters and for the children to spend time with him four nights and one afternoon a fortnight - Where the mother seeks orders for sole parental responsibility and for the children to spend two nights every fortnight with the father - Where the father previously had issues with his mental status -Where the mother genuinely holds the belief that she has been the subject of coercive and controlling behaviour by the father - Where that belief is not reasonably held - Where the children have expressed views that they dislike the morning travel involved in spending time with the father - Where the father has indicated his ability to assist with children's educational progress - Where communication between the parties in relation to matters involving the children and in front of the children is very poor and they would be unable to reach a joint decision about major long term issues - Where orders are made for the father to have parental responsibility in relation to the children's education and for the mother to have parental responsibility for medical and religious matters but the parties are to make a genuine effort to come to a joint decision about any such issue - Where orders are made for the children to spend four nights and one afternoon a fortnight with the father.

Family Law Act 1975 (Cth)

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

1. All previous parenting orders are discharged.
2. Parental responsibility will be allocated between the parents in the following manner:
   • 2.1. The parents shall have shared parental responsibility for B ("B") born ... 2004 and C ("C") born ... 2005 (collectively "the children") in relation to major long term issues about:
     • 2.1.1. The children's surnames noting that the children's surname is Sanders-Mohr and that pending further order or agreement, the parties are to execute all necessary documents to give effect to having the children known by that surname;
     • 2.1.2. Changes to the children's living arrangements that make it significantly more difficult for the children to spend time with a parent.
3. The mother shall have parental responsibility for the children in relation to all other major long term issues about:
   • 3.1. The children's religious upbringing;
   • 3.2. The children's health including medical, dental issues and issues requiring counselling or psychological therapy;

3.3. The mother will contact the father in writing and provide her views about any such issue;

3.4. The mother shall consult with the father with regard to any such issue;

3.5. The mother and father will make a genuine effort to come to a joint decision about any such issue; and

3.6. If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.

1. The father shall not cause the children to attend upon any medical professional, except in the case of an emergency, without the mother's prior knowledge and consent.
2. The mother advise the father of any non-emergency medical treatment received by either child while they are in her care.
3. The children's general practitioner is Dr D at E Centre and the father is restrained from causing the children to attend upon any other medical practice without the consent of the mother except in cases of medical emergency.
4. The father shall ensure that whenever the children are in his care and are attending upon any medical practitioner, hospital or are being conveyed by ambulance that the provides the children's correct details such as name and address.
5. The father shall ensure that he administers any medications prescribed to the children.
6. Each parent shall notify the other party in the event of any medical emergency or substantial injury relating to the children whilst they are in their care within two hours.
7. The parties will provide all necessary consents to allow the parties to speak with any medical practitioner, treatment provider or school attended by the children.
8. The father shall have parental responsibility for the children in relation to major long term issues about:
   • 11.1. The children's education (both current and future) including speech pathology;

11.2. The parents shall do all things and sign all documents to ensure that C completes her primary education at F School and goes to Suburb G School commencing in Year 7 and B continues to attend Suburb G School;

11.3. The father will contact the mother in writing and provide his views about any other such issue;

11.4. The father shall consult with the mother with regard to any such issue;

11.5. The father and mother will make a genuine effort to come to a joint decision about any such issue; and

11.6. If no agreement is reached between the parties, then within 14 days the father shall make the final decision and advise the mother in writing of the decision about any such issue.

1. The children shall live with the mother other than at times when they are living with the father in accordance with these orders.
2. The children shall live with the father during school term on a two week schedule as follows:
   • 13.1. Week One - from after school on Thursday to before school on the Monday of Week One unless it is a long weekend or public holiday in which case the father shall return the children to school on Tuesday morning;
   • 13.2. Week Two - from after school on Thursday to 8pm; and
   • 13.3. This schedule is to continue before and after school holidays without including the weekends which form part of the school holidays;
   • 13.4. At such other times as agreed between the parties.
3. During all New South Wales gazetted school holiday periods, which will begin at the conclusion of the last day of the school term and conclude on the first morning of the commencement of the new school term, the children shall spend time with the father for one half of each of those holiday periods being the second half in 2017 and each alternate year thereafter and being the first half in 2018 and each alternate year thereafter.
4. The children shall spend time with the father on special occasions as follows:
   • 15.1. From 9.00am Christmas Eve until 5.00 pm on Christmas Day in 2017 and each alternate year thereafter;
   • 15.2. From 5.00pm on Christmas Day until 5.00pm on Boxing Day in 2018 and each alternate year thereafter;
   • 15.3. From 9.00am Good Friday to 6.00pm Easter Saturday in 2017 and each alternative year thereafter and from 6.00pm Easter Saturday to 5.00pm Easter Sunday in 2018 and each alternative year thereafter;
   • 15.4. If the children's birthdays fall on a school day, where the children would not otherwise spend time with the father at any time on the day of their birthdays, then between the hours of 3.00pm to 6.00pm;
   • 15.5. If the children's birthdays fall on a weekend when the children would not otherwise spend time with the father at any time on the day of their birthdays then for 4 hours, from 8.30am to 12.30pm;
   • 15.6. On Father's Day each year if it falls on a weekend when the children would not otherwise be spending time with the father from 6.00pm on the Saturday immediately preceding Father's Day until 6.00pm on Father's Day; and

Note: The form of the order is subject to the entry of the order in the Court's records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mohr & Sanders has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

1. Orders were previously made in 2009 for the parties to have equal shared parental responsibility for the children, who are now 13 and 11 years of age, and for the children to spend time with their father each alternate week from 3pm Friday to before school Monday and from after school until 8pm on the alternate Thursday. There has been occasions where the parties have not been able to reach a joint decision about a long term issue and have required the court's intervention. Both parties seek to discharge the order for equal shared parental responsibility and each seek different orders be made in relation to the allocation of parental responsibility. The eldest child has expressed the view that he dislikes the current arrangements for mid-week time and wants that time eliminated. The elder child has a need for encouragement and assistance with his academic activities. The decision in respect of time is a choice between the father's application for increased mid-week time and the mother's application for reduced mid-week time.
2. The father has previously had issues with his mental status. The mother asserts that she has been the subject of coercive and controlling behaviour by the father.

1. The parties have competing applications for parenting orders in respect of their two children, B ("B") born in 2004, currently aged 13, and C ("C") born in 2005, currently aged 11 (collectively "the children").
2. The mother seeks orders for sole parental responsibility and for the children to spend two days every fortnight with the father during school term. She seeks orders in relation to school holidays and special occasions.
3. In her most recent affidavit sworn 7 February 2017, the mother indicated that she did not seek to change any of the orders made by Federal Magistrate Baumann on 4 March 2009 which related to the fortnightly routine but that she would like some certainty in relation to holiday time. The mother explained that she changed her position after she had received the most recent family report. She adopted the recommendations of the family consultant in that report because she believed what was set out in that report reflected the current true wishes of the children.
4. The orders sought by the mother are set out in Schedule 1.
5. The father seeks orders for parental responsibility in relation to the children's education and for the mother to have parental responsibility for medical and religious matters. He seek orders for the children to live with the mother and spend time with him on a two week schedule:
   • 7.1. In week one from after school on Thursday to before school on Monday; and
   • 7.2. In week two on Thursday from after school to 8pm.
6. The orders sought by the father are set out in Schedule 2.
7. The Independent Children's Lawyer sought that all previous parenting orders be discharged. The Independent Children's Lawyer changed his original position which he held at the commencement of the hearing, that an order should be made for equal shared parental responsibility in favour of an order which would assign the final decision making in relation to major long term issues in respect of medical, dental and religious matters to the mother and in relation to matters in respect of education and learning to the father. The Independent Children's Lawyer sought an order that the children live with their mother and during school terms and spend time with their father each alternate week from 3pm Friday to before school or 9am Monday and after school or 3pm until 8pm Thursday in each alternate week with the children to remain in the Suburb G area. Otherwise the Independent Children's Lawyer adopted the orders sought by the mother.

1. The father was born in 1969 and is currently aged 47.
2. The mother was born in 1975 and is currently aged 41.
3. In 1998 Ms H, the mother's child of a previous relationship, was born. She is currently 19 years of age and is a member of the mother's household.
4. The parties commenced cohabitation in mid-2003.
5. The parties' first child, B, was born in 2004 and is currently 13 years old.
6. The parties' second child, C, was born in 2005 and is currently 11 years old.
7. On 17 April 2007 the parties separated under one roof and on 3 July 2007 the mother left the family home.

1. The mother gave her evidence in a very straightforward way. She did not use questions as an opportunity to expand upon her evidence. She often gave answers which did not necessarily advantage her case. I accept the she was telling me how she remembered and perceived things from her point of view.

1. Generally, the father seemed to me to be giving evidence in a fairly straightforward manner.
2. The father however has not always been candid. I accept the father's lack of disclosure in relation to his mental health reflects poorly upon his credit.
3. At paragraph [29] of the family report of 9 April 2014 the family consultant, Mr I, records that the father told her that "he is of good mental health, enjoying many aspects of life including responsibilities at work". The father saw Mr I for interviews on 1 October 2013 and 4 March 2014. As set out elsewhere, by 8 October 2013, the father had had his first consultation with Dr J who diagnosed him as suffering from major depression with some significant melancholy features complicated by panic attacks. The father was prescribed medication by Dr J for that disorder. Dr J in his report of 8 October 2013 records that prior to that time the father had been experiencing escalating depressive symptoms and had been seeing a psychologist for cognitive behaviour therapy. The father had also taken significant periods of leave from work at this time. He agreed that he had lied about this fact to the family consultant in preparation for the 2014 family report and in an affidavit as to his employment and mental status filed around the same date. He also agreed that his partner at that time lied about his employment and mental status in an affidavit filed by her around this time. The father agreed he made a conscious decision not to tell the family consultant about his mental health diagnosis and treatment. I am told that the reason why a scheduled hearing in 2014 before Judge Sexton was aborted was because the mother had discovered reference to the father's undisclosed mental status in subpoenaed documents.
4. The father told the family consultant for the preparation of the family report dated 22 July 2008 that he installed Spyware onto the mother's computer to look into the mother's and the children's bank accounts. In his oral evidence the father denied having told the family consultant that he used the software to access the mother's bank account and said that he was looking into joint accounts the parties held for the children. The father later conceded that the bank account was one the mother held in her sole name on trust for the children. The father also agreed that his statement to the family consultant for the preparation of the family report dated 19 January 2017 that he had used the Spyware software to access his own bank accounts, was incorrect.

1. Where the evidence between the parties is directly in conflict and there is no other basis for me to make a finding about a contested issue, I prefer the evidence of the mother.

DETAILED CHRONOLOGY AFTER THE PARTIES SEPARATED

1. On 20 June 2007 the father left Australia to travel to the UK for two weeks for a wedding. During the time that he was away, the mother discovered that the father had installed spyware on her computer and he had recorded some of their conversations.
2. On 3 July 2007 the mother left the family home with the children.
3. On 28 August 2007 the father filed an Initiating Application.
4. In February 2008 the mother moved to rental accommodation in Suburb G.
5. On 4 March 2009 parenting orders were made following a three day hearing in the Federal Magistrates Court (as it then was) between 3 September 2008 and 5 September 2008 before Federal Magistrate Baumann. Those orders provided that the parties have equal shared parental responsibility but with a specific order that all documents be executed by the parties so that the children would thereafter be known by the surname Sanders-Mohr and for the father to spend time with the children as follows:

1. Whilst the father's work roster is a combination of day shift and night shift on an eight day rotation then:-

(a) The children shall live with the father during the school term for three days and two nights over each eight day period as agreed between the parties and failing agreement then 9:00 a.m. on day 2 of the father's roster until 5:00 p.m. on day 4 of the father's roster; and

(b) At all other times the children shall live with the mother.

1. At a time when the father's work roster changes to day shifts then:

(a) During school terms each alternate weekend from after school Friday to before school Monday and from after school Thursday to before school Friday each alternate week;

(b) At all other times the children shall live with the mother.

1. The children were three and four years old when these orders were made. The orders contemplated that the children's time with their father might increase as they grew older and the parties should engage in mediation prior to coming back to court.
2. From March 2009 to July 2009 the parties operated pursuant to the Category A orders.
3. In July 2009 the father commenced a position in K Town and spent time with the children in Sydney accordance with Category B of the orders made on 4 March 2009. The father says the mother knew that he had moved to K Town shortly after he went there. The mother says she was not aware the father was living outside Sydney at the time he commenced working in K Town and found out at a later date. The father agreed he did not advise the mother that he had moved to K Town, saying he did not need to as the mother had sent him a letter containing a newspaper article which indicated he was in K Town. In the period of time that the father was working in K Town, he retained a home in Sydney and that is where the children stayed with him.
4. From about December 2009 the father commenced taking periods of leave from work including workers compensation leave.
5. On 29 August 2011 the mother commenced full time employment. The mother's position involved shift work and she says she would always offer the father additional days on weekends when she was working before asking the maternal grandmother to assist in caring for the children. She has not done this since about 2012 or 2013.
6. In September 2012 the mother purchased a home in Suburb G. Shortly after this time the mother says that the father advised her that he intended to revert back to Category A of the March 2009 orders as he was intending to recommence day/night shift work. The father says he advised the mother he was reverting back to shift work and wanted to discuss it with the mother. The parties disagreed about how the March 2009 orders should be interpreted. In September 2012 the father moved back to Sydney on a full time basis.
7. On 16 May 2013 the mother filed an Application for Final Orders, asking that "Category A; Order 3) be discharged".
8. On 30 July 2013 interim orders were made discharging Order 3 of the orders made on 4 March 2009.
9. The father first attended upon Dr J, consultant psychologist, on 8 October 2013 and commenced taking anti-depressants. The father was diagnosed as suffering from major depression with some significant melancholy features complicated by panic attacks.

1. There have been significant changes since March 2009. The children are six years older and are themselves asking for a change in the orders.

1. In the family report dated 19 January 2017, the family consultant, Ms N, recommends that the children continue to live with the mother and spend time with the father each alternate weekend from after school on Friday until 6pm on Sunday as well as time during school holidays and on special occasions. This amounts to a 50 per cent decrease in the children's time with the father, with only one pick up every fortnight from school and no mid-week time with the children. The children would go 12 nights without seeing their father.
2. Ms N had not seen B's NAPLAN results. She understood him to be an average student achieving C or D grades. When shown his NAPLAN results, she agreed that information contradicted what B's principal had told her about his performance.

1. In the family report dated 9 April 2014, the family consultant, Mr I, recommended that the children continue to live with the mother and spend time with the father five days per fortnight in a block period across alternate weekends.

1. The father experienced escalating depressive symptoms in October 2013. At that time he was referred by his general practitioner to consult with psychiatrist, Dr J. At this time the father was on leave from work. Dr J diagnosed the father as suffering from major depression with some significant melancholic features complicated by panic attacks. Dr J commenced the father on an anti-depressant. The father was regularly reviewed by Dr J from that time through to 2014. The father's condition improved over that time and he gradually increased his working hours so that by September 2014 he had returned to full time work. The father ceased taking anti-depressants in November 2015. By July 2016 Dr J considered, after the father had gone through extended periods of observation, that the father had fully recovered from his major depressive episode and did not need to see him any longer.
2. The father's general practitioner opines that there are no health reasons (mental or physical) that would impair the father's ability to parent his children on an equal shared care arrangement of seven nights per fortnight. Counsel for the mother did not seek to test that opinion by Dr O.
3. The father told the family consultant, Ms N, that he took significant leave from work from approximately 2009 to the end of 2012 due to work related stress and these proceedings. He told her he had told his doctor in 2009 that he was feeling depressed and having thoughts of self-harm but had no means or intention to do so because of the impact that would have on the children. He took medication between 2012 and 2015 and told Ms N that "in the context of my care of the kids, it [his mental health problem] was never an issue because it had no impact on my parenting".
4. The father says his issues with depression and anxiety did not affect his parenting and time with the children. He said he thrived at times when he was on leave from work. In oral evidence the father said he is currently feeling very good so much so that he has moved up through the ranks in his employment, is managing businesses on the side and has just been made captain of his sports team.

1. In Year 3 B was below the national and school averages in reading, persuasive writing, spelling, grammar and punctuation and numeracy in his NAPLAN results. In Year 5 B's NAPLAN results indicated that he was below the national and school averages in persuasive writing, spelling, grammar and punctuation and numeracy. He was above the school average for reading but below the national average. B's NAPLAN results in 2016 when he was in Year 7 indicated that he was below the national and school averages in reading, writing, spelling, grammar and punctuation and numeracy.
2. The father annexes to his affidavit B's Year 7 Semester 2 report for 2016. That report shows B to achieve a Grade C in English, a Grade D in History, a Grade D in Mathematics, a Grade C in Personal Development Health and Physical Education, a Grade E in Science, a Grade C in Technology - Industrial Arts and a Grade C in Visual Arts.
3. The father gives evidence that he helped both children prepare their written applications and speeches for school leadership positions. Both children were successful in their applications. The father also engaged a tutor for the children on Friday afternoons until November 2013 when he says the mother unilaterally changed his time with the children back to Thursday afternoons. B was engaged in sport on Thursday afternoons so the father was unable to organise a tutor in this time.
4. The mother said that she attempted to engage a tutor for B and to encourage him to attend a Maths club after school but when she broached the subjects with him said B told her that she sounded like his father and made him feel dumb. She says that she has to "tread carefully" in regards to this topic with B because he has low self-esteem as a result of his father "badgering" him about his school work and results. She does not believe tutoring to be beneficial to B's self-esteem but concedes it may be beneficial to improve educational capacity.
5. The mother asserts that B's school reports in 2016 indicated significant improvement in his reading and writing since his 2016 NAPLAN results were released. She says that the comments by the teachers in B's school report indicate that he is working hard and trying his best. The mother thinks that the subjects B does not perform well in are those that he doesn't like. After his NAPLAN results were released the mother said she contacted B's English teacher and asked what she could do to assist B in improving. She says the English teacher advised that tutoring and speech pathology were not necessary but for the mother to encourage B to read more and write a short passage about what he had read for the mother to read over. The mother says she has been following these directions. She said that she had ended the conversation with the English teacher by asking him to contact her if there were any more concerns with B's results and she has not heard from him. The mother only discussed what she was doing to assist in B's education in the broadest of terms.

1. The objects of Part VII of the Family Law Act 1975 (Cth) ("the Act") are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. The principles underlying those objects (unless contrary to a child's best interests) are:

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
2. Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child's best interests.

THE ABILITY OF THE PARENTS TO COMMUNICATE AND WORK TOGETHER AS PARENTS

1. In the defended hearing between the parents in March 2009 Federal Magistrate Baumann made an order that the parties have equal shared parental responsibility of the children. The mother seeks to vary that order so that she has sole parental responsibility. The father also wishes to vary that order so that he has parental responsibility in relation to the children's education and the mother to have parental responsibility for medical and religious matters.
2. Section 4 of the Act defines parental responsibility (as used in Part VII of the Act) as having the meaning given by s 61B of the Act. Section 61B of the Act provides that "parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children".
3. Section 65DAC of the Act deals with the effect of a parenting order that provides for shared parental responsibility about major long term issues and is as follows:

(1) This section applies if, under a parenting order:

(a) 2 or more persons are to share parental responsibility for a child; and

(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

(2) The order is taken to require the decision to be made jointly by those persons.

Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

(3) The order is taken to require each of those persons:

(a) to consult the other person in relation to the decision to be made about that issue; and

(b) to make a genuine effort to come to a joint decision about that issue.

(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

1. The phrase "major long-term issues" is defined in s 4 of the Act as follows:

"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a) the child's education (both current and future); and

(b) the child's religious and cultural upbringing; and

(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

1. Although the definition of major long term issues is not limited to those matters listed, in reality, the list is very comprehensive and covers most of those usually encountered in practice.
2. As can be seen, s 65DAC of the Act provides that any "shared parental responsibility" order about major long term issues creates three statutory requirements:
   • 76.1. Consultation (s 65DAC(3)(a) of the Act);
   • 76.2. Genuine effort to come to a joint decision (s 65DAC(3)(b) of the Act); and
   • 76.3. Decisions to be made jointly (s 65DAC(2) of the Act).
3. The solution to any ultimate impasse between parties who share parental responsibility is for the parties to seek an order about a particular major long-term issue from a court.
4. As set out above, certain major long term issues in respect of the children have already been determined after application to the court:
   • 78.1. in March 2009 Federal Magistrate Baumann in the context of a defended hearing made an order that:

2. That the mother shall be permitted to register the children's surname as [Sanders-Mohr] and that the parties execute all necessary documentation to give effect to this Order.

78.2. Senior Registrar Campbell on 29 July 2015, after a defended hearing, determined that B should attend Suburb G School commencing Year 7 in 2016 (which was what the mother sought, but was opposed by the father).

1. The mother asserts that the father does not comply with the current order for equal shared parental responsibility and that his conduct is not in the best interests of the children. She says that she has experienced difficulties in communicating with the father. For a short time the parties used a communication book. The father tore out pages upon which the mother had written things. The father says he did this because he did not wish to risk the children reading what the mother had written which in his opinion were offensive. The parties now communicate through text message only in emergency situations and otherwise rarely communicate with one another. The mother asserts that the father has made unilateral decisions in relation to the children. She cites the following examples:
   • 79.1. in December 2013 the father did not inform the mother that C had been admitted to L Town Hospital following an injury to her thumb until she was in theatre having surgery under general anaesthetic, about eight hours after the initial incident. The father acknowledged in cross examination that he should have informed the mother about the incident earlier. He did not consult with the mother prior to the child have surgery, requiring a general anaesthetic for which his consent was required. He said he chose to wait to tell her until he had more information. The father acknowledged this was not a good example of co-parenting.
   • 79.2. In June 2014 the mother became aware that the father had facilitated B's attendance upon a speech pathologist without informing her. The father agrees that he took B to a speech pathologist in about March 2014 without notifying the mother until the day after it happened. Subsequently, the mother organised for B to go to a speech pathologist closer to the mother's home but the parties operated independently in dealing with that new speech pathologist. The father arranged for the speech pathologist to contact B's school teacher and did not inform the mother that he had made that arrangement until after it had happened. I note however, that Orders 13 and 17 of the March 2009 orders gives each party permission to individually approach the children's teachers and medical practitioners.
   • 79.3. Despite Order 11(b) of the March 2009 Orders which required the father to ensure the children attend preparatory classes for their reconciliation or confirmation, the father did not take C to her lesson for her First Holy Communion on 1 August 2014 or to mass on 3 August 2014 or to her Commitment Mass on 20 July 2014.

102. In the last 12 months I have really focused on and done my best to try and maintain a business-like approach to communicating with [the mother]. We only communicate through SMS text messages. I try to maintain a composed approach and do not respond if her messages are aggressive...

103. ...I will continue to be respectful and I am more aware of [the mother's] boundaries. [The mother] is not always civil to me but I have always tried to be civil especially in front of the children. I always greet [the mother] during pick up and drop offs with a "Hello". [The mother] ignores this. [The mother] does not greet me at all or acknowledge my presence. I think this sets a bad example for the children. However it is my strong view that I should always set a good example in front of the children and that means being respectful, polite and acknowledging the children's mother.

1. B similarly, in the interviews for the 2014 family report stated, "Dad wants to be friends with Mum but I am not so sure about Mum". B noted that when "Dad picks us up, he says 'hi [Ms Mohr]' but Mum doesn't say anything back".
2. The mother conceded that she, in the children's presence, did not respond at all to the father when he attempted to acknowledge her in a courteous way. It is unfortunate for the children that the mother is unable to politely and civilly speak to and acknowledge the father when he has been courteous to her.
3. The mother was questioned about the part she played in the difficulties with communication between the father and herself. When explaining to the family consultant why there was no communication between her and the father, the mother said "[i]t's a protective measure for myself because he twists everything". The mother claims that she has attempted to be amicable with the father but that she regards him as "unpredictable" and does not trust him. According to the mother, the father has previously "rocked up unexpectedly like he's seeking evidence against me". She alleges that she has had to padlock a gate on her property to prevent him from entering.
4. The mother in cross examination confirmed that she did not think communication with the father was possible. She says that text communication with the father normally turns into barrage of texts backwards and forwards. However, she did later say that for the benefit of B, she may be able to have polite communication with the father.
5. As already mentioned, the father has done some stupid and inappropriate things including:
   • 86.1. utilising Spyware software to inspect bank accounts in the mother's name and recording a conversation between him and the mother (the father said he recorded one of their conversations to show a counsellor they were seeing at the time the type of conversations they had); and
   • 86.2. listing the mother's place of birth as Africa on B's football registration form.
6. As discussed below, the mother links her psychological inability to communicate with the father with her assertion that she has been the subject of coercive and controlling behaviour by the father. Whilst I accept the mother genuinely holds this belief, the basis upon which she does so is not a reasonable reaction to some isolated and stupid things the father has done.

The benefit to the children of having a meaningful relationship with both of the children's parents (s 60CC(2)(a))

1. Both parties acknowledge the benefit to the children of having a meaningful relationship with both of their parents.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

1. Neither party asserts there has been any physical violence during the relationship. The father submits that there is no evidence of the children suffering physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in either of the party's homes.
2. The mother submits that the father is overbearing and seeks to control her as he did during their relationship. As indicated above, whilst I accept the mother genuinely holds this belief, the basis upon which she does so is not a reasonable reaction to some isolated and stupid things the father has done.
3. The main risk factor in this case is the friction and hostility between the parents. The family consultant comments in her report "[t]his is extremely concerning as children and young people who experience ongoing conflict between separated parents often suffer harmful consequences socially, educationally, and psychologically".
4. The family consultant agreed that the ongoing parental conflict is a significant risk factor for the children as they move into adolescence. In her oral evidence she said that research suggests that children with parents in conflict have about a 50 per cent more chance of having fairly significant potentially lifelong psycho-social issues including poor self-esteem, depression, anxiety and difficulty forming relationships and potentially having difficulty meaningful relationships later in life. She said that for adolescents, the age the children are moving into, this means they might engage in self-soothing behaviours and may be more inclined to take risks such as take drugs or be sexually promiscuous.

1. The mother alleges that the father has overtly attempted to influence the children's views. She says in her affidavit that after spending time with their father the weekend prior to the interviews for the family report, the children reported that the father had spoken to them about the time they spent with each parent. In the family report dated 19 January 2017 the family consultant noted that B expressed concern about the father's reaction when he learnt he did not wish to spend more time with him as he felt his father wanted him to say that he wanted additional time. In her oral evidence the family consultant said that there was no strong intonation that the father had coached the children.
2. In the family report dated 19 January 2017, Ms N, the family consultant, made observations that the "intractable" and "deeply entrenched" conflict between the parties was having an impact on the children. B informed the family consultant that he wanted his parents to "stop fighting over us". B told Ms N that "he likes the current parenting arrangement and would like it to remain in place going forward, although he later said that he would prefer not to spend any overnight time with [the father] at all during the week". B expressed annoyance at having to get up early and travel a long distance to school every second Friday morning from the father's home when his mother's home is located just across the road from his school. B was also concerned that if he were to spend more time with the father after school, the time he enjoys spending with his school friends would be impacted. He told the family consultant that he "won't be happy" if orders are made for "fifty-fifty" time.
3. Ms N says that "B's views in particular should be considered in the context of his being an adolescent who is becoming closer to his peer network and more psychologically autonomous".
4. C reported to Ms N that she considered the time she currently spends with her father to be satisfactory and said that she is able to call him when she likes. C told Ms N that her parents do not like each other, which upsets her, and after she has spent time with one parent the other parent asks "too many questions" about her time with them.
5. Ms N at paragraph [44] of her report says that both children have expressed the view that they would like the parenting arrangements to remain the same. However, the family consultant describes that as "they would like to continue to live with their mother in Suburb G and spend time with their father in Suburb Q every second weekend. Both children also indicated that they would prefer to 'drop' the overnight time they spend with Mr Sanders each alternate Thursday".

Relationships of the children with the parents and other persons (s 60CC(3)(b))

1. It is clear from the family report that the children both have meaningful relationships with both of their parents.
2. There are two important adults on the mother's side who did not give evidence. The first person is the maternal grandmother. The mother relies upon the maternal grandmother for support in caring for the children. The mother did not call the maternal grandmother as a witness in her case. No submission was made pursuant to Jones v Dunkel (1959) 101 CLR 298. The mother says the maternal grandmother is a 72 year old with no health problems. She concedes that her mother may in some weeks spend more time with the children than their father. I have no reason to doubt that the maternal grandmother is more than capable of providing care for the children when the mother is unavailable.
3. The second person is Ms H who is a permanent member of the children's household when they are with their mother. She is 19 years of age. The mother described her as being responsible and more than capable of providing supervision for the children at times when her shift work might require it and the maternal grandmother is not available. The family consultant reports that the younger child in particular has a close relationship with Ms H. The family consultant reports that she did not see Ms H on the day of the interviews because Ms H was spending time with her paternal family following the death of her paternal grandfather.
4. The children spend time with members of the paternal family when spending time with their father.

Extent to which the parents participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))

1. I accept the father has attempted to spend time with the children at every opportunity and has attempted to communicate with the mother regarding the children from time to time which he says, has been met with resistance. These efforts were particularly diligent during the period of time the father lived in K Town. He has also acted as a coach for B's sport team. The father's involvement with the children has featured commendable punctuality.
2. As set out above, the mother complains that the father has made unilateral decisions in relation to the children without consulting with her or informing her. As indicated, these included, for example, B's sporting commitments and arranging for B to attend upon a speech pathologist. She also alleges that the father has placed the children at risk by not administering medication to them when required and not providing their correct personal details to hospital and ambulance staff. The father says the mother has resisted any overture by him to go to mediation in relation to disputes about the children.
3. The mother says she stopped offering the father additional time when she was working after an incident in about 2012 or 2013 when he did have the children and she could not get in contact with him and he and the children were not at home when the maternal grandmother went to collect them.

Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))

1. The mother has always been the children's primary carer.
2. The father has paid child support as assessed by the Child Support Agency.

Likely effect of any change in the children's circumstances (s 60CC(3)(d))

1. The children are well acquainted with spending time at each parent's respective homes and have been in their current arrangements since July 2009. Neither party seeks to change the children's primary place of residence from the mother's home.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

1. The father currently takes B to his football training during his time with the children on Thursday evenings. The mother complains that this adds two additional commutes as it involves the father picking the children up from school, driving them to his residence and then taking B to training either leaving C with a neighbour or bringing her with them. Sometimes, prior to B's training, the father will also take the children to visit the paternal grandmother who lives close to where B's training takes place. However, the mother does concede that there is benefit in the father being involved in the children's extra-curricular activities.
2. The father submits that the distance between the parties' homes is not overly onerous. I accept it is about 40 minutes in each direction which is against the traffic both in the mornings and afternoons. However, B does complain to the family consultant about the travel in the morning because he says it is annoying getting up earlier than he has to at his mother's house. The mother submits that the distance between the parties' does pose a practical difficulty in the father spending time with the children, but I do not place great weight on those asserted practical difficulties.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children's parents (s 60cc(3)(i))

1. Ms N commented on the good relationship the father has with the children's schools and the extent to which he interacts with those schools. She said the schools spoke very highly of him, saying he was engaged, proactive in assisting the children in their education and met with all the teachers. She also says his life skills are a strength he brings to the children.
2. Counsel for the father submitted B views his father as proactive and told Mr I that his father "gets things done" which would be more beneficial to B's education compared to the mother's "softly, softly" approach.
3. In March 2016 the father commenced acting in an executive position, working Monday to Friday with flexible working hours. The father says, and I accept, his hours are sufficiently flexible to make any parenting pattern work. He has never been late for a pick-up or drop-off at the children's schools.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

1. Both parents are now in full time employment. The mother has been able to purchase a home and provide a stable life for herself and the children. The father's mental health has improved and he says he has been moving through the ranks in his employment, managing businesses on the side and as mentioned, is now captain of his sports team.

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

Any family violence involving the children or a member of the children's family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))

1. The mother says that she was the subject of coercive and controlling behaviour by the father during the relationship and subsequently since the relationship. The mother conceded that the father has never threatened her with, or perpetrated, physical violence. She however said the control was mental, emotional and financial. The father concedes that he did install Spyware on the mother's computer and said in his oral evidence that he used that software to access bank accounts she held on trust for the children. He denies that he was financially or otherwise controlling of the mother during their relationship.
2. The mother says the father dropped by her house in May, June or July 2016 unannounced. She says she threatened to take out an AVO and the father ceased. However, this is inconsistent with her agreeing to the father picking the children up from outside her house and picking up items the children had forgotten to take with them, from her porch. The mother did not agree that this was inconsistent, saying it is the unscheduled nature of the visits which concerned her. The father says an incident occurred in 2013 when he went to the mother's house unannounced and he now realises this may have upset the mother and put the children in a difficult position. Although he did do it again in 2016 he says since 2013 he has only done so after the children have sent him a text message asking him to drop things to them, which he has interpreted as permission to go to the mother's residence. At some time prior to May 2016, however, he realised he was not welcome unannounced.
3. I do not accept that the father has perpetrated coercive controlling family violence on the mother.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

1. Given the history of litigation in this matter and the effect it has had on the children, I am mindful that the orders made should as far as possible ensure the parents do not return to court. For that reason the orders are made as prescriptive as possible.

Any other relevant fact or circumstance (s 60CC(3)(m))

DOES THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY APPLY IN THIS CASE?

1. Although the father and the Independent Children's Lawyer initially sought an order for equal shared parental responsibility, they abandoned that position during the hearing.
2. As already mentioned, the court has had to impose a decision about the children's surname and B's high school. There was no suggestion that these decisions would be varied. In addition, the father agreed to an order that would require the parties to send C to Suburb G School.
3. It became clear during the hearing that I could have no real confidence that the parties could reach a joint decision about a major long term issue in circumstances where they were seriously in dispute about it.
4. Accordingly, both parties and the Independent Children's Lawyer agreed that some form of parental responsibility order or sole parental responsibility order be made.
5. The father and the Independent Children's Lawyer submitted that the mother should be given the right to make a final decision about issues in respect of religion and matters to do with the children's health and the father should be given the right to make a final decision about issues in respect of education. The mother sought that she have sole parental responsibility in relation to all matters.
6. The children primarily will live with their mother and given the history, I find she is better placed to make final decisions in relation to matters concerning health and religion.
7. I find that the children will be advantaged by having their father closely involved in their future educational progress and given the interest and the efforts that he has made in respect of the children's education to date, I find that he should be the parent who has the right to make a final decision in respect of any major long term issue to do with the children's education.
8. As set out above, there has previously been conflict between the parents arising from B attending speech pathology. There is some likelihood that he will require speech pathology in the future. There was some contention as to whether or not that treatment is a medical matter or a matter relating to his education. To avoid doubt, I will assign any final decision in relation to speech pathology, to the father.
9. Similarly, there was an issue as to whether or not counselling or psychological therapy for the children is a matter falling under the rubric of a medical issue or an educational issue (given that it might be that at some time a child needs to see a school counsellor). For the sake of clarity, the order shall make it clear that any counselling or psychological therapy is a matter in respect of which the mother shall have the responsibility for making a final decision about if the parties can't otherwise agree.

CONCLUSION ABOUT EQUAL SHARED PARENTAL RESPONSIBILITY AND SECTION 65DAA(1) OF THE ACT

1. Even though I have not made an order for equal shared parental responsibility and consequently s 65DAA(1) is not enlivened, I for completeness still consider whether the child spending equal time or substantial or significant time with each of the parents would be in the best interests of the child and reasonably practicable.

1. Under the order that has been effectively in place since July 2009, the children have been spending each alternate weekend from after school Friday to before school Monday and from after school Thursday to before school Friday each alternate week.

Is an order for equal time or substantial and significant time in the children's best interests?

1. Both Mr I and Ms N opine that an order for equal time is not in the children's best interests. As Ms N points out, lack of communication between the parties contraindicates a successful co-parenting arrangement. She states:

Children who live successfully in equal time arrangements typically have parents who have a respectful and workable co-parenting relationship. The quality of the care provided by Mr Sanders and Ms Mohr is not disputed. Both parents are very capable carers but unfortunately their co-parenting relationship is obstructed by mutual distrust, anger, and acrimony.

1. Whilst acknowledging some brief periods of passably acceptable communication, Ms N categorises the parental communication as tense and problematic arising from an extremely weak parenting alliance. She further observes that the children are cognisant of the friction and hostility between their parents.
2. The father has abandoned his original application for equal time and sought an order for substantial and significant time. He says that he has a greater focus on academic proficiency and assisting the children, particularly B, in achieving at school and assisting him in the form of tutoring and speech pathology. He says that the flexibility of his work arrangements allows him to assist the children after school with homework, take them to extra-curricular and other activities. He says that there is benefit in the children spending an extra night a fortnight with him.
3. B has expressed the clear view that he would like the current arrangement to remain in place although he would prefer not to spend any overnight time with his father at all during the week. The family consultant opined that B's views in particular should be given weight. She however accepted that she had not taken into account B's current academic performance. C did not wish for there to be any significant change to the current arrangement. It seems to me that neither child had a particular objection to the travel to school on a Monday morning from their father's home. The mother had no objection besides the traffic and travel, to the children staying with their father until Monday morning rather than the Sunday evening.
4. Counter-balancing the children's expressed views, the father's proposal has the advantage of the father being involved with particularly B and his academic work on each Thursday evening, albeit that the children would sleep at the father's home only on each alternate Thursday.
5. Clearly B, at the age of 13, would prefer to sleep in on all Friday mornings rather than get up about 30 minutes earlier to travel to school every second Friday morning. B might also prefer to have less pressure placed upon him (which is the situation in the mother's household) in relation to doing school work.
6. Ms N did not see the benefit in the children spending mid-week time with their father as the burden of travel was a significant concern for them.

Is an order for substantial and significant time reasonably practicable?

1. The only practical difficulty in the father's proposal that he would spend substantial and significant time with the children by having them with him on Thursday nights during school term is the fact that he lives 40 minutes away from their mother's home and their school. Each second week this will require the children to leave the father's home for school at an earlier time than they would if they were at their mother's home. Otherwise, the proposal is reasonably practicable.
2. I acknowledge the difficulties the parties currently have in communicating with one another, but the history of compliance with court orders is such as to lead me to find that the children spending overnight time with their father during mid-week could reasonably work at a practical level.

1. I find that it is in the children's best interests and reasonably practicable to make orders that the children spend substantial and significant time with their father by spending mid-week time with him.

1. The focus during the hearing was almost exclusively on issues around parental responsibility and the children's time with their father during school terms. Little attention was given to the plethora of other specific orders sought. The parties and the Independent Children's Lawyer seemed to agree that given the long history of litigation between the parties, the orders should be as prescriptive as possible. Given the lack of submissions on specific orders, I intend, having regard to all evidence I have heard that is relevant to the best interests of the children, to generally make the orders in the form sought by the mother and the Independent Children's Lawyer. I have made a minor variation as to when school holidays conclude and have made mirror orders for the children's time with each parent over Christmas.
2. The arrangement reached between the parties in relation to drop off and pick up if it is not from school, is for the father to collect B at the front of the mother's house. This arrangement is beneficial for B as he is able to collect the belongings he needs before spending time with his father. Sometimes the mother will leave items B has left behind on her veranda for the father to collect.
3. C has her religious initiation later this year which will involve her attending classes before a ceremony. The mother said she would be willing to use a communication book to communicate with the father about such major events in the children's lives. She says text messaging usually results in a barrage of messages backwards and forwards and she cannot trust using email after the father downloaded spyware. The father says he would prefer to communicate with the mother by text message. Ultimately the mother agrees with this but seeks to put some limits upon that communication which I accept.
4. The mother has a separate mobile phone in her house solely for the children to use to contact the father. She says the father calls the phone every second night and she says the children choose whether or not they answer. She agreed she could encourage them more to answer the phone or return a missed call from their father.
5. The mother agreed without further order not to move further than the father's residence is now.
6. The mother said on her proposal the children would still see the father when not designated in the orders as he still attends the children's sport and training on the weekend and Thursdays.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 16 May 2017

1. That the Mother shall have sole parental responsibility for the children B born ... 2004 and C ("the children") born ... 2005.
2. That the children shall live with the Mother at all times when they are not spending time with the Father pursuant to these Orders.
3. The children shall spend the time with the father each alternate weekend from after school Friday until 6.00pm Sunday.

1. During all New South Wales gazetted school holiday periods, which will begin on the last day of the school term and conclude on the last Sunday of the gazetted school holidays, prior to commencement of the new school term, the child/ren, spend time with the father as follows:
   1. For one half of each of those holidays periods being the first half in 2018 and each alternate year thereafter and being the second half in 2017 and each alternate year thereafter.

1. The children shall spend time with the father on special occasions as follows:

1. From 9.00a.m Christmas Eve until 5.00 p.m on Christmas Day in 2017 and each alternate year thereafter. 2. From 5.00 p.m on Christmas Day until 5.00 p.m on Boxing Day in 2018 and each alternate year thereafter;

1. From 9.00 am Good Friday to 5.00 pm Easter Saturday in 2017 and each alternative year thereafter and from 5.00 pm Easter Saturday to 5.00 pm Easter Sunday in 2018 and each alternative year thereafter; and

1. If the child/ren's birthday/s fall/s on a school day, where the children would not otherwise spend time with the father at any time on the day of their birthdays, then between the hours of 3.00pm to 6.00pm. 2. If the child/ren's birthday/s fall on a weekend when the child/ren would not otherwise spend time with the father at any time on the day of their birthdays then for 4 hours, from 8.30am to 12.30pm. 3. On Father's Day each year if it falls on a weekend when the child/ren would not otherwise be spending time with the father from 6.00pm on the Saturday immediately preceding Father's Day until 6.00pm on Father's Day. 4. At such other times or alternate times as agreed between the parties.
2. During school terms on weekends, the parent with whom the children are not living/spending time with shall initiate telephone communication on the Saturday night between 6-7.30pm.

1. The time that the child/ren are to spend time with the father pursuant to these Orders shall be suspended at the following times:

1. during school holiday periods and the time pursuant to Order 2 herein resumes in the next school term as though there had been no interruption to the regime. 2. From 6.00pm on the Saturday immediately preceding Mother's Day until 6.00pm on Mother's Day.

1. If the children's birthdays fall on a weekend when the children are spending time with the father then for four hours from 8.30am to 12.30pm.

1. If the children's birthdays fall on a school day where the children would otherwise spend time with the father then between the hours of 3.00-6.00pm. 2. On Ms H's birthday if it falls on a weekend or school holiday period when the children are spending time with the father then for four hours from 8.30am to 12.30pm or, if it falls on a school day where the children would otherwise spend time with the father then between the hours of 3.00-6.00pm. 3. In 2017 and each alternate year thereafter, from 5.00pm Christmas day until 5.00pm on 27 December. 4. In 2018 and each alternative year thereafter, from 9.00am Christmas Eve until 5pm Christmas day. 5. In 2017 and each alternate year thereafter, from 6.00pm Easter Saturday to 5.00pm Easter Sunday. 6. In 2018 and each alternate year thereafter, from 9.00am Good Friday to 5.00pm Easter Saturday.
2. That in respect of all Orders that provide for the children to spend time with the father he shall ensure that the children:
   1. Attend school unless there has been prior consultation with the mother.
   2. Attend any preparatory classes for their religious sacraments; and any other planned extra-curricular activities whilst the children are in his care.

1. That for the remainder of 2017 the Father shall collect C from and return her to her school at the commencement and conclusion of his time during school terms and in respect of any special occasions other than school holidays and thereafter in accordance with Order 10 herein.
2. The Father shall collect the child/ren from and return the children to the Mother's residence at the commencement and conclusion of his time during school terms and in respect of any special occasions other than school holidays.
3. The Father shall collect the child/ren from the Mother's residence at the commencement of his school holiday time and the Mother shall collect the children from the Father's residence at the conclusion of this time.

1. When the child/ren are in the care of one parent for holiday block time, then the other parent may communicate with the children by telephone, between 6.00pm and 7.30pm on at least 2 nights per week, that being Wednesday and Friday nights, and at any other time that the child/ren may request.

1. That the party who wishes to remove the children from the Commonwealth of Australia or interstate, shall notify the other party in writing, 60 days prior to travelling, and provide to the other party all travel itinerary, address of places(s) of residence and telephone contacts, to other party. Consent for the purposes of travelling outside Australia or interstate shall not be unreasonably withheld by the parent providing consent. The parent providing their consent to travel shall be at liberty to have make up time with the children lost as a result of travel.
2. That the children's passports shall remain with the Mother, and that she shall make them available to the Father when it is proposed that the children travel overseas.
3. That the Father shall return the children's passports to the Mother within seven days of the children's return to Australia.

1. That the Father shall not attend at the Mother's residence for any other purpose or at any other time without the Mother's prior consent.
2. The father shall only communicate with the mother by SMS message in respect of the children not more than twice per week except in the case of a medical emergency involving the children.
3. The mother and father be at liberty to attend any organised extracurricular activities engaged in by children.
4. The mother and father be at liberty to attend all school functions, activities and events that parents with the children at the school would ordinarily attend unless the school directs otherwise.
5. The mother and father each advise the other of any medical treatment received by either child while they are in that parent's care.
6. The children's general practitioner is Dr D at E Centre and each parent is restrained from causing the children to attend upon any other medical practice without the consent of the other parent except in cases of medical emergency.
7. The Father shall ensure that whenever the children are in his care and are attending upon any medical practitioner, hospital or are being conveyed by ambulance that the provides the children's correct details such as name and address.
8. The Father shall ensure that he administers any medications prescribed to the children.
9. That each parent shall notify the other party in the event of any medical emergency or substantial injury relating to the children whilst they are in their care within 2hrs.
10. The parties will provide all necessary consents to allow the parties to speak with any medical practitioner, treatment provider or school attended by the children.
11. That the Father shall not cause the children to attend upon any other medical professional, except in the case of an emergency, without the Mother's prior knowledge and consent.
12. The Mother and Father advise each other of any proposed change of residential address seven days before the change takes place.
13. The children are to attend F School until the conclusion of Year 6 respectively and then they are to attend Suburb G School.
14. If the children are to travel outside of the state of New South Wales then the parent causing the children to so travel is to notify the other parent in writing at least 7 days prior to such travel and is to provide contact and accommodation details for the children for the period of such travel.

1. A. That the Mother have parental responsibility for the children, B, a male born ... 2004 and C, a female born ... 2005 ("the children") for medical, dental and religious matters.

B. That the Father have parental responsibility for the children for matters relating to the children's education and learning.

C. In the exercise of parental responsibility the parties shall:

a. Inform the other party in writing as to the nature of long term decisions the other party intends to make;

b. As soon as practicable and in the event within 72 hours of receipt of the notice in writing from the party with parental responsibility pursuant to Order 1 the other party shall inform the party with parental responsibility of their view on the long term decision ("the other party's view");

c. The party with parental responsibility pursuant to order 1 shall take into account the other party's view on the long term decision in the exercise of parental responsibility.

1. That the children shall live with the Mother other than at times when they are living with the father in accordance with these orders and that the children shall live with the Father on a two week schedule as follows:

a. Week 1 - from after school on Thursday to before school on the Monday of Week 1 unless it is a long weekend or public holiday in which case the father shall return the children to school on Tuesday morning (4 consecutive nights per fortnight).

c. At such other times as agreed between the parties.

1. Subject to the Notations contained within these Orders the parties shall spend time with the children during the Term 1, 2 and 3 and Christmas/summer school holiday period as set by the schools attended by the children, in accordance with the school calendar of the school which the children each attend with the commencement time of the school holidays being from after school on the last day of the school term and the halfway point being 3.00 pm on the day in the middle of the commencement and conclusion of the school holidays and such holiday time shall include all and any staff development days and/or pupil free days, at times to be agreed upon between the parties and failing agreement as follows:
   • 3.1. during the Term 1, 2 and 3 school holiday periods the Mother shall spend time with the children for the first half of the school holiday period in even numbered years, commencing 2018 and in the second half of the school holiday in odd numbered years beginning 2017.
   • 3.2. during the Term 1, 2 and 3 school holiday periods the Father shall spend time with the children for the second half of the school holiday period in even numbered years, commencing 2018 and in the first half of the school holiday in odd numbered years beginning 2017.
   • 3.3. The Father shall spend time with the children for the first half of the Christmas/ summer school holiday period in odd numbered years, commencing 2017 and in the second half of the school holiday in even numbered years beginning 2018.
   • 3.4. The Mother shall spend time with the children for the second half of the Christmas/ summer school holiday period in odd numbered years, commencing 2017 and in the first half of the school holiday in even numbered years beginning 2018.
2. That, unless otherwise agreed between the parties and other than when the children are not to be delivered to or collected from school in accordance with these Orders, the Father is to pick up/collect the children from the residence of the Mother at the commencement of his time with them and the Mother is to pick up/collect the children from the residence of the Father at the commencement of her time with them.
3. That the parties shall each ensure that they take the children to and from their agreed extra-curricular activities during such times as the children are with them.

1. That all and any communication between the parties, save for an emergency involving the children to communicate verbally and failing this shall be in writing via email to the respective party's nominated email address or by the sending of an SMS message to the party's nominated mobile telephone number. In the event of an emergency involving either or both of the children, the party with the care of the child/children will immediately contact the other party on their mobile telephone number. All communication between the parties is to be respectful at all times.
2. That the parties will refrain from exchanging information via the children and shall exchange all information about the children in accordance with Order 7 herein.
3. That the Mother and Father shall ensure that the other is kept informed as soon as is reasonably practicable of:-
   • 9.1. any medical problems or illness suffered by the children, whilst in the care of the Father;
   • 9.2. any medication that has been prescribed for the children whilst the children are in their care;
   • 9.3. any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children whilst in their care;
   • 9.4. any social, school or religious functions which the children are to attend whilst in the care of their care;
   • 9.5. their residential address;
   • 9.6. their telephone contact number;
   • 9.7. their email address;
   • 9.8. Any persons residing or partially residing at the residential property when the children are in their care.
   • 9.9. any other matter relevant to the welfare of the children.

1. That the children shall have liberal communication with the parent with whom they are not living with, and that both parties be at liberty to communicate with the children by telephone and any other electronic method utilised by children including but not limited to email, SMS text message, Skype and Facebook and at all reasonable times by contacting the children by any of those means.

1. THAT in the event the parties cannot reach joint decisions about:-
   • 11.1. a major long-term issue involving the children; or
   • 11.2. the interpretation of these Orders; or
   • 11.3. the implementation of these Orders; or
   • 11.4. the enforcement of these Orders; which involve the children;

each of the parties will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.

1. That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parties, each of the parties is to take the following steps:-
   • 12.1. do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; or
   • 12.2. participate in Family Dispute Resolution with a person authorised under the Family Law Act.

Orders for spending time with each party upon significant occasions:-

1. The children shall also spend time with the parties as follows:
   • 13.1. In the event that Father's Day does not coincide with the time the children are living with the Father, then with the Father each Father's Day Weekend from 9.00 am Saturday to 8.00 pm Sunday;
   • 13.2. In the event that Mother's Day does not coincide with the time the children are living with the Mother, then with the Mother each Mother's Day Weekend from 9.00 am Saturday to 8.00 pm Sunday.
   • 13.3. Christmas Day -
     • 13.3.1. With the Father - in odd numbered years from 9.00 am Christmas Eve to 7.00 pm Christmas Day and in even numbered years from 7.00 pm Christmas Day to 7.00 pm on Boxing Day (26 December), unless otherwise agreed by both parties.
     • 13.3.2. With the Mother - in even numbered years from 9.00 am Christmas Eve to 7.00 pm Christmas Day and in odd numbered years from 7.00 pm Christmas Day to 7.00 pm on Boxing Day (26 December), unless otherwise agreed by both parties.
     • 13.4. Easter holiday period - in the event that the Easter holidays do not fall within the Term 1 school holiday period then the parties shall spend time with the children as follows: -
       • 13.4.1. In even numbered years, the Mother shall spend time with the children from 5.00 pm Holy Thursday to 5.00 pm Easter Saturday.
       • 13.4.2. In odd numbered years the Mother shall spend time with the children from 5.00 pm Easter Saturday to 5.00 pm Easter Monday.
       • 13.4.3. In even numbered years the Father shall spend time with the children from 5.00 pm Easter Saturday to 5.00 pm Easter Monday.
       • 13.4.4. In odd numbered years, the Father shall spend time with the children from 5.00 pm Holy Thursday to 5.00 pm Easter Saturday 5.00 pm
       • 13.4.5. Otherwise as agreed between the parties.
     • 13.5. Children's Birthdays - Unless otherwise agreed between the parties, the children shall spend time with the parties as follows:-
       • 13.5.1. With the Father - In the event that the children are not living with the Father on their birthday then the children shall spend time with the Father as follows:

(a) If the birthday falls on a school day from 3.00 pm to 7.00 pm;

(b) If the birthday falls on a non-school day from 9.00 am to 3.00 pm;

13.5.2. With the Mother - In the event that the children are not living with the Mother on their birthday then the children shall spend time with the Mother as follows:

(a) If the birthday falls on a school day from 3.00 pm to 7.00 pm;

(b) If the birthday falls on a non-school day from 9.00 am to 3.00 pm.

1. That either party may take the child on an overseas trip other than to a country that has a Level 4 "Do not travel" advice on the Australian Government Department of Foreign Affairs & Trade website, during the school holiday period as per the school attended by the children provided that the trip occurs during the period that the party travelling overseas will usually spend time with the children in the school holiday periods in accordance with these Orders.
2. In the event that the children are to be taken by a party to a country that is not a signatory to the Hague Convention, then the travelling party shall require the written consent of the other party before taking the children to the non-Hague Convention country.
3. That prior to the child leaving Australia for the trip referred to in Order 14 herein that the party travelling with the children will provide to the other party in writing, no later than 28 days prior to any departure date, the following: -
   • 16.1. Written notice of their intention to travel;
   • 16.2. A detailed itinerary, of the planned travel arrangements including address of where the children will be staying during the overseas travel;
   • 16.3. A copy of the travel medical insurance for the children;
   • 16.4. Contact telephone numbers for the children whilst they are overseas.
4. That on receipt of the intended itinerary in accordance with Order 16.2 herein, the party holding the child's passport will provide the passport to the party travelling and such passport shall be provided no later than 14 days prior to any departure date.
5. Subject to the Orders and Notations herein the parties are hereby restrained from removing either and/or both of the children from the Commonwealth of Australia without the prior written consent of the other party.
6. The parties will do all things necessary to sign all documents to obtain an Australian passport for both the children and both parties will ensure that both the children have a current Australian passport until such time as the children turn 18 years of age.
7. That the Father hold the children's passports in even numbered years and the Mother hold the passports in odd numbered years and the handover of the passports to the other party to be on the last day of the Term 1 school term.

1. That the Mother and the Father shall refrain from making critical and/or derogatory remarks about the other party or members of her/his family in the presence or within the hearing of the children and that the Mother and father each shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of his/her/their family in the presence or within the hearing of the children.